A dying declaration recorded by the police without proper certification by a doctor and in violation of the Police Rules is not reliable and cannot be used to sustain a conviction.

1. The present appeal arises out of Judgment of the learned Sessions Judge, Jodhpur in Sessions case No. 122/95 whereby the accused-appellant has been convicted under Sections 302 and 498-A, I.P.C. and was sentenced to imprisonment for life under Section 302, I.P.C. and one year’s rigorous imprisonment under Section 498-A, I.P.C. along with fine of Rs. 1000/-.

2. Being aggrieved by such conviction and sentence, the present appeal has been filed by the appellant.

3. Theprosecution started with the recording of Ex. P. 1 statement of the deceased Smt. Suraj by Pooran Singh; S.H.O., Police Station, Pratap Nagar, Jodhpur. This statement was recorded by Pooran Singh at 10

A.M. whileSmt. Suraj was undergoing treatment in the Burn Unit of Mahatma Gandhi Hospital, Jodhpur. According to this statement Smt. Suraj had stated before the S.H.O., Police Station, Pratap Nagar, Jodhpur that she is educated up to 8th Class. While she was in the house sitting near the Paniara, her husband poured kerosene on her and lit the match stick. Her mother-in-law and father-in-law are not involved. Her husband has illicit relations with one Pinky. This is the bone of contention in between them. On this score he was annoyed with her. She has also stated that he used to make demands for money for which he used to say that bring it from your mother. She was brought to the hospital by the brother-in-law of her husband. This statement Ex.P. 1, after recording, was sent to the Police Station, Pratap Nagar. P.W. 20 Harish Chandra Singh Investigating Officer after receiving this statement at the Police Station recorded a formal first information report which is produced on the record as Ex. P. 15. The investigation started after lodging of the first information report as aforesaid. After completion of the investigation a charge-sheet was presented, the charges were framed against the accused-appellant under Sections 302 and 498-A, I.P.C. Accused denied the charges and claimed trial.

4. Toestablish its case the prosecution examined 20 witnesses. The accused also led his defence and examined Smt. Tara Devi D.W. 1 and Manji D.W. 2 as defence witnesses.

5. The learned Sessions Judge considered the evidence of the prosecution and came to the conclusion that from the statement Ex.P.1 as recorded and proved by Pooran Singh P.W. 17 and P.W. 1 Dr. Nirmala who was present in the hospital, the case of the prosecution is made out. Regarding the other witnesses he found that

P.W. 7 toP.W. 12 who could be the witnesses of what happened in between the appellant and the deceased have turned hostile and, therefore, there is no direct evidence available on the record in this respect. From the evidence of mother and father of the deceased examined as P.W. 2 and P.W. 3 respectively it was found that the relations in between the deceased and the appellant were strained and, therefore, relying on the evidence of strained relations and the dying declaration Ex. P. 1 the learned Sessions Judge convicted and sentenced the appellant as aforesaid.

6. Learned Counsel appearing for the appellant has impugned the Judgment of the learned Sessions Judge by contending that the only evidence on record is the dying declaration Ex.P. 1 recorded by the police. Under the Police Rules a set procedure has been provided for recording of a dying declaration and as and when a dying declaration is to be recorded by the police this procedure is required to be followed. If this procedure is not followed then the courts should not take such dying declarations into consideration. To support his case, the learned Counsel has placed reliance on Smt. Kalawati vs. State of Rajasthan 1993 CriLR (Raj) 798 : 1994 CriLJ 691, wherein this Court observed as under: We have considered the rival contentions. Rule 6.22 of the Rajasthan Police Rules, 1965 lays down as follows Dying declarations.

.(1) A dying declaration shall, whenever possible, be recorded by a Magistrate.

.(2) Theperson making the declaration shal